from the really,-guys? dept

While I still think the biggest story to come out of the Sony hacks is the fact that the MPAA had a plan to fund investigations of Google by public officials to get negotiating leverage over the company, a lot of other interesting tidbits have been revealed as well, including the fact that the MPAA still really, really believes in the idea of site blocking. It has listed it as a "high priority" item that was discussed in a recent anti-piracy strategy meeting bringing together the top lawyers from most of the major Hollywood studios:

As the TorrentFreak article above notes, the MPAA laid out a four prong approach to force site-blocking on the US. The Verge recently posted an MPAA email that described at least some of the strategy as well:

We have traditionally thought of site blocking in the US as a DMCA 512(j) issue. In some ways, that is too narrow and we plan to expand our scope of inquiry on two levels. First, DMCA 512(j), by its terms, necessarily creates an adversarial relationship with the target ISP (and more generally with the ISP community). We have been exploring theories under the All Writs Acts, which, unlike DMCA 512(j), would allow us to obtain court orders requiring site blocking without first having to sue and prove the target ISPs are liable for copyright infringement. This may open up avenues for cooperative arrangements with ISPs. Second, we start from the premise that site blocking is a means to an end (the end being effective measures by ISPs to prevent infringement through notorious pirate sites). There may be other equally effective measures ISPs can take, and that they might be more willing to take voluntarily. Our intention is to work with our own retained experts and Comcast (and MPAA’s Technology group) to identify and study these other possibilities, as well as US site blocking technical issues.

The MPAA is right that 512(j) is likely a dead end. In fact, a legal analysis done by the MPAA's lawyers at Jenner & Block (the MPAA's preferred legal hatchet men) details why. The "All Writs Act" approach is nutty, and would lead to significant push back from a variety of parties (we just recently noted that the DOJ has been trying to use the All Writs Act to get companies to help decrypt encrypted phones). There would undoubtedly be a big legal fight over any such attempt. Other plans, like using the ITC or the Communications Act would also run into problems.

In fact, The Verge also just published some internal legal analysis from Jenner & Block explaining why the ITC route is really risky and unlikely to work, whether targeting transit ISPs (Level3, Cogent, etc...) or access ISPs (Verizon, Comcast, AT&T, etc...). Amusingly, the "alternative" to SOPA that was pushed out by some anti-SOPA folks in Congress actually would have made the ITC route more feasible, but the MPAA was among its loudest critics. And yet now suddenly it's exploring the ITC path? Ha!

Either way, the most insane part of all of this is the fact that, nearly three years after SOPA, the MPAA more or less admits in an email that it hasn't really analyzed the technological impact of site blocking (which was a key component of SOPA) and feels like maybe it should get on it. From the email sent by MPAA General Counsel Steven Fabrizio:

Technical Analyses. Very little systematic work has been completed to understand the technical issues related to site blocking in the US and/or alternative measures IPSs might adopt. We will identify and retain a consulting technical expert to work with us to study these issues. In this context, we will explore which options might lead ISPs to cooperate with us.

Talk about putting the anti-piracy cart before the internet horse...

Meanwhile, the MPAA -- recognizing the shit storm created by SOPA -- has made sure that all of its site blocking efforts are to remain as quiet as possible (oops):

Be cautious about communications on site-blocking—continue building a record of success where possible, but avoid over-communicating and drawing negative attention.... Where site-blocking is actively under consideration, make available research (1) that site-blocking works and (2) that it does not break the Internet (lack of "side effects"). [Do this] in closed-door meetings with policymakers and stakeholders, [but] not necessarily publicized to a wider audience.

Yes, make sure people think site blocking "works" even though the MPAA doesn't have the requisite technical knowledge to understand it. So, in the interest of open source research, I'm going to help the MPAA out a bit and explain to them why site blocking is stupid and massively counterproductive. I mean, they could just look at what's happened in the past few weeks since The Pirate Bay went down, leading tons of other sites to pop up and (as reported in Variety -- normally a keen source of spinning in favor of the studios) the actual impact on infringement online was basically nil.

But, let's take this a step further. Let's say... for example, that the MPAA succeeded in having certain "evil" sites blocked. Thankfully, at about the same time as these meetings were going on, the MPAA also gave Congress a list of the sites it considered "notorious." Let's take one -- how about torrentz.eu -- and do a basic Google Search showing what results would come up if Goliath Google were forced not to link to the site (which is slightly different from site blocking, but the MPAA is also talking about similar efforts to get full domains "removed" from Google as an alternative to site blocking -- and the end results would be pretty much the same thing). Take a look:

If you can't see it, it's basically a bunch of links to pages listing out where you can go instead of that particular site. In short, site blocking is stupid. It won't actually cut down on any infringing activity, and it's easily gotten around, whether by VPNs or just by doing a rather basic search. Now, of course, the MPAA and its friends would likely still blame Google for this state of affairs, but I'm curious how the MPAA contends that Google should return results on such a site if it's been blocked or removed from search? How could it possibly also block out links to sites that list alternatives? Or is part of the plan to expand the censorship all the way down the pile so that any site that even mentions sites that the MPAA declares "notorious" also need to be blocked? Because if that's the case, they're going to run into a pretty massive First Amendment question before long.

The problem -- as always -- is that the MPAA still thinks that the public is stupid, and that if they can successfully "block" sites that people will stop looking for alternatives. The reality is that the way to get people to stop looking for unauthorized alternatives is to make better authorized alternatives -- but that's clearly still not a priority for the MPAA. And that's a real shame.

And none of this even touches on the problems with false positives (something that's already happened a bunch) or how site blocking might seriously screw up certain security setups, like DNSSEC (something the MPAA was clearly warned about during the SOPA fight, but which it still seems to deny is a real problem). In fact, during a recent secret "Site Blocking" meeting by the MPAA, it still appears to mock the idea that site blocking would break the internet by messing up DNSSEC. That's because the MPAA still doesn't seem to fundamentally understand the issues at play. If they actually talked to some real engineers at ISPs, maybe they'd learn that this whole infatuation is misguided and won't work.

In short, the MPAA sees site blocking as a priority because it doesn't understand the first thing about site blocking and why it would fail -- and that's speaking legally, technically and using just basic common sense. So why is the MPAA so focused on that, rather than actually innovating and adapting? This is what happens when you put a bunch of litigators, rather than innovators, in charge.

from the kids-these-days-just-like-a-challenge dept

You'll recall that earlier this year, news leaked out that Keurig's latest pod-based coffee maker (Keurig 2.0) would come complete with the java-bean equivalent of DRM, preventing the device from using third-party pods -- or reusable pods that allow users to simply use regular ground coffee. After the story gained traction, Keurig quickly went into damage control mode, insisting that the DRM was necessary to bring consumers "interactive-enabled benefits." The company's CEO then compounded the silliness, issuing a statement claiming that the DRM was "critical for performance and safety reasons."

Frustrated coffee drinkers who have "hacked" their way around pod roadblocks built into the new Keurig brewers may just be looking for a hurdle to overcome, says the president of Keurig Canada Inc. "There are some, when you give them a challenge, they'll really get at it," Stephane Glorieux said in an interview Monday."Whatever you throw at them, they'll find some way of doing it."

As it turns out, some folks have found that all it takes to defeat the DRM is a single piece of Scotch Tape (and a previously-used official k-cup):

Of course you (and your piece of tape) are the very worst sort of villain for violating anti-circumvention laws, even though it's Keurig that's engaged in anti-competitive behavior and making customers jump through hoops. Meanwhile, annoyance at Keurig has been gaining momentum the last few months in Canada, with a growing number of competitors and smaller companies filing formal complaints with Canda's Competition Bureau. This includes companies interested in making biodegradable pods to help tackle one of the worst parts of the pod coffee craze: the environmental impact of millions of plastic k-cups.

from the how-to-be-totally-uninformed dept

Neal Katyal, a former Acting Solicitor General of the US, and (more importantly) a lawyer hired by the broadcasters to help with their case against Aereo, has written one of the most ridiculous opinion pieces yet about Aereo, published over at the Hollywood Reporter. It basically reiterates every bogus copyright maximalist trope there is in this particular fight, and apparently demonstrates that he was paying attention to very different Supreme Court oral arguments than the rest of us.

First, he pulls the trick we discussed recently in which he pretends that complying with the law is somehow circumventing the law. Then he does that thing where he completely hand-waves away the claim that a ruling against Aereo won't impact cloud computing, by just insisting that they're different, without bothering to deal with (as many of the Justices pointed out in the oral arguments) that there's a real problem with declaring Aereo a public performance, as there's no clear way to distinguish it from cloud computing.

But the real problem with Katyal's reasoning is the "but if they were serious they could just get licenses" argument:

Licensed services like Netflix, Amazon and iTunes play by the rules, and that means their services are not at issue here. In fact, these services provide concrete evidence that refutes Aereo's vague threats about "innovation" writ large. These services developed because of licensing – not despite it. And they continue to thrive today, to the benefit of the public and copyright holders alike, because they deliver something valuable to consumers – not just a way to circumvent the law.

Aereo, on the other hand, is an illegitimate, unlicensed streaming service. It grabs broadcasters' signals from the airwaves without paying for them, stores user-specific copies of that programming in its servers, and then delivers that programming over the Internet live or on-demand for a fee. Aereo would prefer that everyone just focus on that second function (storage) but disregard the other two (theft and transmission).

Except that nearly everything above is misleading to inaccurate (sometimes in the extreme). Aereo plays by the rules too -- the rules that allow people to time shift and place shift over the air broadcasting, which is provided for free to the public, supported by advertising (and an enormous grant of free spectrum to the broadcasters from the public, supposedly for the public good). The fact that Netflix, Amazon and iTunes license other content has no bearing on the actual legal issue of whether or not providing the same piece of content to multiple parties (even if they are individual copies) is a "public performance." That some businesses do a different thing another way is not the issue. The issue is how a ruling that this represents a public performance will massively increase liability on any company that stores and transmits the same content to multiple people.

And, Aereo also seems to deliver something valuable to consumers. I've spoken to many Aereo customers and they all absolutely love the service.

As for Katyal's ridiculous claims of "theft" or "grabbing" -- that's just rhetoric used to mislead. These are over the air signals, and it's perfectly legal to "grab" those signals as the Supreme Court made clear in the Betamax case that Katyal must surely know about. Similarly, it's perfectly legal to transmit such content over the internet, via something like a Slingbox, so long as it's done privately by an individual for his or her own account. And that's what Aereo has set up for consumers -- a service to do what is clearly established as legal.

At the hearing, the Justices asked about these critical differences between Aereo and legitimate cloud services. They repeatedly mentioned the line between merely passive storage, on the one hand, and active content-distribution services, on the other. Aereo falls in that second category, which is why this case does not implicate cloud storage services. And it does not have a license, which is why this case does not implicate iTunes, Amazon or other legitimate streaming services on the content-delivery side of the line.

Katyal appears to be under the misconception that the "worries" about how this could impact cloud computing are people worrying about how it impacts iTunes or Amazon Prime's streaming service. They're not. They're worried about how it impacts things like iCloud or Amazon's S3 services, in which people store content on far away servers. Based on the arguments of the broadcasters, Apple and Amazon may be implicated as providing a "public performance" of content that people choose to store and stream from those services -- unrelated to the "licenses" that they have for their other services. It's kind of amazing that Katyal can be so confused about this.

Delivering on-demand streaming of copyrighted programming for a fee is the quintessential public performance.

I store plenty of (authorized) music MP3s on Amazon S3. And I stream from there. I pay Amazon for that service. But Amazon has not licensed those works. Yes, Amazon has licenses for its digital music, but these are not songs purchased from Amazon (some aren't even available on Amazon). But Katyal appears to be claiming that my storing of content and streaming it is a public performance. And that's exactly the problem we're talking about.

Katyal keeps insisting that Aereo is selling the content. He's wrong. They're selling the service of enabling people to access content that is available free, over the air. It's a classic case of ignoring the value of the service, and insisting 100% of Aereo's value is the content.

Much is at stake in the Supreme Court's decision in this case. Broadcasters invest billions of dollars to create, acquire, and distribute the most-watched video programming in the country, and perhaps even the world.

... And then they give it away for free via over the air broadcasts. And nothing that Aereo does impacts that market at all. The broadcasters' real problem, which Katyal doesn't mention because it would expose the sheer ridiculousness of his argument, is that the broadcasters have become fat and happy based on cable and satellite retransmission deals. That's what they're really fighting over, though they don't want to admit it. Notice that nowhere does Katyal admit that all of the content in question is broadcast free over the air? I wonder why...

I recognize that Katyal is a high powered lawyer who used to be the Solicitor General, but the broadcasters really ought to spend their money on someone slightly more convincing.

from the so-that's-kind-of-meaningless dept

As TorrentFreak is noting, the UK is finally modernizing basic user rights concerning copyright (what they call "fair dealing") to officially make it "legal" to make personal copies of legally acquired copies of digital content. In short, due to restrictive copyright law, it has always been technically infringement in the UK to rip a CD or DVD, but as of June that will change. This was one of the key suggestions in the Hargreaves report from three years ago, so it's good to see it finally being put into action.

That said, this is hardly perfect. It appears that the fair dealing rules still won't let you circumvent DRM in order to make those private copies. In the FAQ the UK government is distributing, we see the following:

As that notes, if the media includes DRM, you're basically out of luck:

Media such as DVDs are often protected by anti-copying technology to guard against copyright piracy, and this is protected by law. Copyright owners will still be able to apply this protection. However, if copy protection is too restrictive, you may raise a complaint with the Secretary of State.

Right, so in order to rip a personal copy of a movie so you might, for example, watch it on your tablet, rather than in a DVD player, you first have to "raise a complaint with the Secretary of State" and hope they do something about it? That basically eliminates this new effort entirely. And that's always been the problem with DRM and anti-circumvention rules. They basically give content middlemen the ability to put a veto on user rights, blocking them from doing things that are perfectly legal.

from the this-could-be-big dept

One of the many problems with DRM is its blanket nature. As well as locking down the work in question, it often causes all kinds of other, perfectly legal activities to be blocked as well -- something that the copyright industry seems quite untroubled by. Here's an example from Europe involving Nintendo (pdf):

Nintendo markets two types of systems for videogames: 'DS' portable consoles and 'Wii' fixed consoles. It installs a recognition system in the consoles, and an encrypted code on the physical housing system of videogames, which has the effect of preventing the use of illegal copies of videogames. Those technological protection [DRM] measures prevent games without a code from being launched on Nintendo equipment and prevent programs, games and more generally, multimedia content other than Nintendo's, from being used on the consoles.

That means that DRM is preventing users from accessing non-Nintendo games and other works that they have lawfully acquired. One company affected by this is PC Box, which sells "homebrews" -- applications from independent manufacturers -- the use of which requires the installation of software that circumvents Nintendo's DRM. As was to be expected, Nintendo is not happy about that, and so the Milan District Court has been asked to adjudicate:

Nintendo considers that PC Box equipment seeks principally to circumvent the technological protection measures of its games.
PC Box considers that Nintendo's purpose is to prevent use of independent software intended to enable movies, videos and MP3 files to be read on
the consoles, although that software does not constitute an illegal copy of videogames.

Aware that this raised an important question of law, the Milan judges asked the Court of Justice of the European Union, the EU's highest court, to clarify how the European Directive on the harmonization of copyright applied in this case. The judgment has just been handed down; here's the key part:

The Court of Justice next states that the legal protection covers only the technological measures intended to prevent or eliminate
unauthorised acts of reproduction, communication, public offer or distribution, for which authorisation from the copyrightholder is required. That legal protection must respect the principle of proportionality without prohibiting devices or activities which have a commercially significant purpose or use
other than to circumvent the technical protection for unlawful purposes.

The Court of Justice notes that the scope of legal protection of technical measures must not be assessed according to the use of consoles defined by the holder of copyright, but that rather it is necessary to examine the purpose of devices provided for the circumvention of protection measures,
taking account, according to the circumstances at issue, of the use which third parties actually make of them.

Having made those important general points, the Court of Justice of the European Union then goes on to instruct the Milan court to consider specific issues, such as whether Nintendo could use alternative forms of DRM that allow other programs to be run, and whether PC Box's software is mainly used for legal or illegal purposes.

As well as being an eminently sensible ruling, it's potentially hugely important, because it establishes that in principle DRM may be circumvented, depending on the circumstances. It's one that is likely to be greeted with howls from the copyright industry, since it cuts right across its view that DRM is sacred, and can never be circumvented in any situation. It's refreshing to see Europe's top court adopting a more nuanced approach to copyright that recognizes that users have important rights too, and that they should not be obliged to put up with what copyrightholders impose upon them if that is disproportionate in its knock-on effects.

from the well-needed dept

While there was a lot of talk after the White House agreed with an awful lot of people that mobile phone unlocking should be legal, there's been little real action. Part of the problem might be that the White House suggested that this could be fixed via telecom law, when the whole issue had nothing to do with telecom law, but the broken anticircumvention provisions of the DMCA, also known as 17 USC 1201. While Congress did put forth a bunch of bills, they were all lacking, and none seemed to really tackle the underlying problem: 17 USC 1201 is completely broken. It makes circumventing a technical protection measure a form of infringement, even if the circumvention has nothing to do with actual copyright infringement. Furthermore, it makes it illegal to "manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof," that is primarily designed for circumventing digital locks even if the end use is not infringing.

Thankfully, Rep. Zoe Lofgren has finally introduced a real reform bill that tries to tackle this issue, along with Rep. Thomas Massie, Rep. Anna Eshoo and Rep. Jared Polis. The bill, called the Unlocking Technology Act of 2013, changes the law to make it clear: if you circumvent some sort of digital lock for a reason that has nothing to do with infringement, it would no longer be illegal. Basically, it would add the following:

It shall not be a violation of this section to circumvent a technological measure in connection with a work protected under this title if the purpose of such circumvention is to engage in a use that is not an infringement of copyright under this title.

Similarly, circumvention tools that have primarily non-infringing uses would also be legalized. It would still be illegal to do that big list of things above if the intent is to infringe, but merely creating the tools for non-infringing purposes would be legalized. Thus, tools for unlocking mobile phone, and the act of unlocking mobile phones, would be legal.

The bill also has two other key pieces. First, it makes it clear that it is not copyright infringement to switch networks and then access or load a copy of software that is stored in RAM. This seems very specific, but some operators have argued that by putting in a clause in a user agreement that forbids switching networks, those who do so could infringe by then accessing software stored in memory.

Finally, and perhaps most importantly, the bill addresses the claims that fixing the DMCA would violate trade agreements (we've heard seven different trade agreements would be violated with this simple fix of the DMCA) by telling the President that Congress says he needs to fix those agreements. Nice and simple:

The President shall take the necessary steps to secure modifications to applicable bilateral and multilateral trade agreements to which the United States is a party in order to ensure that such agreements are consistent with the amendments made by this Act.

This is actually really important. Because (just watch) copyright maximalists love to scream about how changes like this would "violate our international obligations" (while leaving out the fact that they were the ones who wrote half of those agreements in the first place). But the fact is that Congress has authority over international trade, not the executive branch. So if Congress wants, as would be the case with this bill, it can order the executive branch to change or fix any international agreements that get in the way of good law.

from the grateful-for-small-mercies dept

Techdirt has been covering the UK's long-running saga of attempted copyright reform for some years. Most recently, we wondered whether even the Hargreaves Review's moderate suggestions would survive in the face of the usual frenzied lobbying from the copyright industry. Rather remarkably, they have, and the UK government has published a list of the legislative changes it proposes to make (pdf).

These are welcome but hardly revolutionary -- more a matter of dragging UK copyright law into the 21st century. They include:

a private copying exception that lets people make copies of content they have bought, but only for their personal use;

simpler rules for using copyright material in the education sector;

permission for the limited quotation of copyright works for any purpose, as long as the source is acknowledged;

a limited copying exception for parody, caricature and pastiche;

a research and private study exception;

permission to use published research results for data analysis, but only if it is for non-commercial purposes;

permission for people with disabilities to obtain copyright works in an accessible form if there is none on the market;

archiving and preservation exceptions, designed for museums, galleries and libraries;

wider exceptions for public bodies to share some third-party information online.

The government document provides plenty of background information on its thinking, and why it chose to make the exceptions it did. Along the way, it offers some fascinating insights into the submissions from the copyright companies, and how they attempted to stave off change once more. For example, perhaps aware that it would be unable to convince the UK government not to bring in a range of minor exceptions for the public, the copyright industry seems to have adopted a fallback position based around licensing contracts. Here's the issue:

One of the arguments made by creators and rights holders in consultation was that licensing should always preclude or override any exception to copyright: if there is a licence then people should purchase it.

If that reasoning were allowed, it would effectively gut all the new exceptions, since they could always be overridden by licensing contracts imposed on users. Apparently, some went even further:

Some responses to consultation suggested that allowing unlicensed use of works when a licence was available was necessarily a violation of the [Berne] three-step test. The Government believes this view to be incorrect, as the requirement of the three-step test is that the law "does not unreasonably prejudice the legitimate interests of the author", or conflict with the "normal exploitation" of the work.

As the UK government pointed out:

To argue that all exploitation of a work is "normal exploitation" is to reduce the three-step test to two steps, which is manifestly not its intent. Furthermore, a licensing override is potentially inequitable to users: some could be forced to buy licences for uses much broader than the permitted act in question, while others -- where there was no licensing scheme in place -- would pay nothing.

On the other hand:

users and institutions serving users felt that a failure to address the possibility of contract override could and did render permitted acts meaningless, and their benefits wholly or partly unrealised. They argued this was a problem now. Consumers were not in any position to negotiate the terms on which copyright goods were sold or licensed, and even larger users such as institutions argued that negotiation was so resource-intensive as to be effectively impossible as a general rule; prices were not transparent and there was little or no choice of supplier.

Fortunately, the UK government agreed:

to the extent that is legally allowed, the Government will provide for each permitted act considered in this document that it cannot be undermined or waived by contract. This may include a prohibition on licensing override of permitted acts, or restricting the terms on which licensing may impact on permitted acts. The aim is not to establish contract as superior to permitted act or vice versa, but to ensure licensing does not restrict acts that are beneficial to society as a whole.

However, there is one area where the proposals fall short: dealing with DRM, or "technical protection measures" (TPM) as the document puts it. The problem is that DRM, like contracts, could easily block many of the new exceptions that the UK government is proposing. Unfortunately, European law does not allow the UK government simply to grant users the right to circumvent DRM in such cases. Instead, there is an incredibly clumsy and inconvenient procedure that must be followed:

In the UK, if a person cannot carry out a permitted act due to a TPM, and the rights holder has refused to provide a 'workaround', the mechanism used is that a user may issue a notice of complaint to the Secretary of State (SoS). The SoS can issue 'directions' to ensure that the permitted act can be carried out.

In other words, if you want to make a backup of an ebook, or transfer a music file to another medium, but are stymied by DRM, you have to write directly to the minister concerned, and ask him or her to contact the copyright holder to provide a copy in some way. Convenient, no?

This ridiculous approach, which will inevitably be ignored by most people as they continue to turn to "alternative" channels to access material they have paid for, is a consequence of the 2001 European Copyright Directive (the European equivalent of the DMCA), which places limits on what the UK government may do in the area of TPMs.

The fact that the UK government is being forced to adopt such a manifestly impractical solution to DRM's override of the proposed copyright exceptions is a stark reminder of the effect other treaties like ACTA and TPP would have, since these too will oblige all signatories to adopt certain minimum legal requirements for copyright and other areas whether or not they think them reasonable or wise. Indeed, it's clear that the copyright maximalists have shifted their attention to such multilateral treaties because they neatly circumvent democratic discussions that can happen within individual nations, substituting instead secret negotiations behind closed doors that members of the public can't even follow, much less influence.

Given these constraints, the UK government has perhaps done the best it could as far as DRM is concerned. The same could be said about the rest of the proposals. None of them is radical or revolutionary, but the fight that it has taken to get them is a reflection of the extraordinary success the copyright companies have had in blocking even the mildest attempt to update copyright legislation in the UK and make it fit for the digital age.

The UK government has stated that it wants to bring the new exceptions into force by October 2013. After all these years, that day cannot come soon enough.

from the not-all-bad-but-not-all-good-either dept

The clause-by-clause review of Bill C-11, Canada's new copyright legislation, has concluded. Michael Geist tirelessly live-Tweeted the committee discussion, and as it progressed one thing became clear: Canada is almost certainly going to be saddled with a DMCA-style anti-circumvention law (more commonly referred to here as the "digital locks" law) that would make it illegal to bypass copy protections, even for the purposes of making a completely legal, non-infringing copy such as a personal backup of a DVD. Both the Liberals and the NDP brought forth amendments that would have fixed this by clarifying that bypassing copy protection is only illegal if it is for the purposes of making an illegal copy, but the ruling Conservative government was unwilling to budge. They also defeated an amendment that would have fixed the digital locks exception for people with disabilities—an exception which exists, but is largely toothless as currently written.

The news isn't all bad—none of the more extreme changes lobbied for by the entertainment industry were accepted, and most were not even seriously considered:

The government's decision to leave the digital lock rules untouched is unsurprising but still a disappointment, since both opposition parties were clearly persuaded that such a change was needed. On the other hand, given the heavy lobbying by many groups demanding changes to fair dealing (all parties rejected calls for a new fair dealing test or limitations on education), user generated content (there were multiple calls for its removal), statutory damages (there were calls for unlimited damages), and Internet liability (there were calls for notice-and-takedown and subscriber disclosure requirements), the government's proposed amendments [were] relatively modest.

The bill is now on its way to the House of Commons for its third reading, with some of its best elements—expanded fair dealing, no notice-and-takedown—intact, along with its worst element: the digital locks provision. Though C-11 is not law yet, it's passage is all-but-guaranteed at this point, which means we may one day see a situation in this country like that in the US, where people have faced jail time for modding an Xbox (yes, that charge was later dropped, but a citizen never should have been dragged before a judge for modifying hardware they legally own in the first place). It's still important to make your voice heard: if you want to let the government know that you don't support the indirect criminalization of legal copying accomplished by the digital locks provision, today is the day to contact your Member of Parliament. Although the Conservative majority is putting its weight behind the bill, we learned with SOPA/PIPA that copyright and internet freedoms are not a partisan issue. It may be too late to stop the digital locks provision, but it would be good to see some serious debate in the House, and send a message that Canadians recognize what has happened: the Conservative government has used its majority to foist a bad law upon us at the behest of industry powers and U.S. diplomats, over the objections and best interests of the citizens it is supposed to serve.

from the um,-wow dept

It's that time again when the Librarian of Congress is considering special exemptions to the DMCA's anti-cicrumvention provisions. One of the key proposals, which we discussed earlier, was Public Knowledge's request to allow people to rip DVDs for personal use -- just as we are all currently able to rip CDs for personal use (such as for moving music to a portable device). The MPAA (along with the RIAA and others) have responded to the exemption requests (pdf) with all sorts of crazy claims, but let's focus in on the DVD ripping question, because it's there that the insanity of Hollywood logic becomes clear.

Effectively, the MPAA is arguing that there is no evidence that ripping a DVD itself is legal, and since anti-circumvention exemptions are only supposed to be for legal purposes, this exemption should not apply. Leaving aside the sheer ridiculousness of the fact that we need to apply for exemptions to make legal acts legal (I know, I know...), this is quite a statement by the MPAA. While it's true that there hasn't been an official ruling on the legality of ripping a DVD, the fact that CD ripping is considered legal seems to suggest that movie ripping is comparable.

But the bigger point is that the MPAA is arguing that because they offer limited, expensive and annoying ways for you to watch movies elsewhere, you shouldn't have the right to place shift on your own:

Copyright owners include with many DVD and Blu-
Ray disc purchases digital copies of motion pictures that may be reproduced to mobile devices
and computers pursuant to licenses. Blu-Ray disc purchasers can also take advantage of
"Managed Copy" services that are scheduled to launch in the U.S. later this year. Movie
distributors and technology companies are also making available services such as UltraViolet,
which enables consumers to access motion pictures on a variety of devices through streaming
and downloading. Many movies and television shows are also available online through
services such as Comcast Xfinity, Hulu and Netflix, or websites operated by broadcasters or
cable channels, which consumers can enjoy from any U.S. location with internet access. With all
of these marketplace solutions to the alleged problem PK points to, it is unlikely that the
presence of CSS on DVDs is going to have a substantial adverse impact on the ability of
consumers to space shift in the coming three years.

Notice that almost all of these "market solutions" mean you have to pay multiple times for the same content -- and they ignore the fact that these offerings are all very limited and may not have the content on the DVDs people have. Public Knowledge has a quick summary of how these "solutions" are not solutions at all:

The MPAA had two specific suggestions. First, consumers could re-purchase access to a subscription service such as Netflix of Hulu. They did not dwell on the fact that 1) this would require you to pay again to access a movie you already own; 2) these services require a high speed internet connection in order to work; 3) There is a reasonable chance that the movie you own is not available on any of those services at any given time; and 4) MPAA member studios regularly pull videos that were once available on those services off of those same services.

The MPAA’s second suggestion was even less helpful. In their comments, they pointed to Warner Brothers’ DVD2Blu program. This program allows people to use their existing DVDs as a coupon towards the purchase of a handful of Warner Blu-Ray disks. They did not dwell on the fact that 1) this program is limited to Warner Brothers films; 2) the program is limited to 25 exchanges per household; 3) while some Blu-Ray disks include digital copies that can be moved to other devices, it is unclear how many of the disks in the DVD2Blu program include that option; 4) only 100 movies are included in the entire program; and 5) each exchange costs at least $4.95 plus shipping (which, for the record, is about as much as it would cost to buy the digital file from Amazon.).

When you think about it, this is really quite crazy. They're saying because they offer you an option to pay for a way too expensive, very limited option that might not really exist, you shouldn't have the right to rip your DVDs. This would be like the recording industry claiming you can no longer rip CDs because they offer a limited locked down selection of music in an online store. People would revolt at such a claim, and they should find the MPAA's ridiculous claims here equally as revolting.

If the MPAA stopped there, it would be crazy enough... but no, in the mind of Hollywood, they have to take it even further. They claim that because the ability to rip your DVD might take away their ability to keep charging you for the same content over and over again, that it goes against the purpose of copyright law. Seriously. They're actually claiming that their ridiculous "windows" are "new business models" that copyright law is designed to encourage:

In fact, granting PK’s proposed exemption would be directly counter to the purpose of
this rulemaking. It would undermine emerging business models that increase access to creative
works in precisely the manner Congress intended the DMCA to promote.

But that's pure bullcrap. The business models in question do not "increase access." They increase the ways in which you can pay. If they want to increase access, they would let you rip your damn movie.

It is clear that access controls have increased consumers’ options with respect to
motion pictures in digital formats. The Register should not interfere with that progress. Instead,
she should endorse it.

Up is down, black is white, day is night. Controls have increased consumer options? No freaking way. Controls have limited options... but have allowed the MPAA studios to set up tollbooths and charge people multiple times for content they legally had purchased the rights to.

from the of-course-they-are dept

While there's still a fight over whether or not SOPA and PIPA will pass, it seems that people are already working up basic hacks to make the laws obsolete, should they pass. The folks behind MAFIAAFire, the browser plugin designed to route around ICE seizures has created a new offering, dreadfully named "The Pirate Bay Dancing," which will route around any DNS or IP blocking by using a rotating list of proxy servers. If you thought that ICE was upset about MAFIAAFire, you'd have to imagine they won't be at all pleased about this bit of code. Of course, SOPA does have an anti-circumvention clause in there, which would effectively make this plugin illegal. Of course, I can't see how they could possibly enforce something like that. Using a proxy in general is legal. How will they know if you're using a proxy to get around these particular blocks? Either way, it's yet another example of why the MPAA's insistence that DNS blocking remain in the bill shows (yet again) how technically clueless they are. DNS blocking is a total waste of time. It makes the internet less secure. It fragments key pieces of the internet. Breaks the basic agreement of how the internet is supposed to work... And all for what? To create a system that won't actually block much at all?